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Lawyers Turn Health Reform Over and Over; and MA is at the Core

Lawyers Turn Health Reform Over and Over; and MA is at the Core

May 5, 2009

You know national health reform is getting serious when the lawyers start getting involved. And, like always, Massachusetts is at the center of the discussion.

Last week the O’Neill Institute for National and Global Health Law at Georgetown University sponsored a program on "Legal Solutions in Health Reform," featuring 8 papers on issues such as the constitutionality of the individual mandate (hotly debated by some of our commenters), the role of ERISA, and insurance discrimination on the basis of health status.

As reported in the New America Foundation's New Health Dialogue blog, Connector General Counsel Jamie Katz was on the hot seat at the session, explaining the difficult legal issues the Massachusetts Connector has had to deal with:

Katz said the legal issues surrounding the Massachusetts Connector meant he was constantly trying to fit a round exchange peg into a square legal hole. The Connector is essentially running a commercial enterprise as a state authority. It operates as a regulator and as a commercial corporate partner. He noted, for instance, that open meeting, procurement, and other state administrative procedure laws apply to how the authority runs the exchange. Those laws caused real trouble when the Connector tried to collect proprietary information from plans without exposing that information to the public. Katz recommended that any national reform that creates an exchange must start slowly and phase things in. That makes it easier to tweak existing laws so the exchange can work better as a commercial enterprise. Katz also said that it was crucial to have a close working relationship to all the other regulatory entities, such as the Department of Insurance, the Attorney General, and the federal counterparts. It has to be a cooperative effort.

All of the papers, funded by The Robert Wood Johnson Foundation, are valuable background for advocates and policymakers. But the real-life experience of Massachusetts will be just as valuable in a myriad of ways in both the legislative and implementation stages. HCFA is regularly being asked by Washington types to interpret the Massachusetts experience now, as are many of the other players in the chapter 58 universe. Like SCHIP and many other health policy innovations, will we be able to say that national reform was "Made in Massachusetts?"
Brian Rosman